Opinion
Decided May 4, 1926.
ASSUMPSIT, for milk sold and delivered. Trial by the court. Verdict for the plaintiff.
During October, November, and the first five days of December, 1924, the plaintiff delivered one hundred and fifty-four cans of milk to the defendants, who are dealers in milk. The agreed price was fifty cents per can.
On December 2, a milk inspector took a sample of the plaintiff's milk at the defendants' plant, and upon the following day he took a second sample. Tests showed that both samples were adulterated with water. The defendants mixed the plaintiff's milk with other milk and sold it in the usual course of business. They did not know that any part of it was adulterated, until the above tests were made. There was no evidence as to the number of cans delivered by the plaintiff upon December 2 and 3.
Upon the foregoing facts the court found a verdict for the plaintiff for seventy-seven dollars. "The question whether upon the foregoing facts, the verdict for the plaintiff can be sustained" was reserved and transferred from the municipal court of Manchester by Perkins, J.
Timothy J. Howard, for the plaintiff.
James A. Broderick, for the defendant.
There can be no recovery for the purchase price of goods which the vendor could not legally sell. Albertson v. Shenton, 78 N.H. 216; Dunbar v. Locke, 62 N.H. 442; Bliss v. Brainard, 41 N.H. 256; Lewis v. Welch, 14 N.H. 294; Roby v. West, 4 N.H. 285. Adulterated milk could not legally be sold. Laws 1917, c. 156, s. 1.
At least two cans of the milk sold by the plaintiff to the defendants, i.e. those from which the samples were taken, were watered. For the price of these two cans, amounting to one dollar, there can be no recovery. A verdict for the plaintiff for the balance of his claim would be sustainable upon the reported facts.
Case discharged.